KESAVA PILLAI Vs. SREEDHARAN PILLAI

JUDGEMENT

(1.) The property in suit originally belonged to the tarwad of Parameswara Pillai, the father of the plaintiffs. It was then subject to a possessory mortgage, Ex. P1 dated 3.12.1087 M. E. (18.7.1912 A. D.)and a deed of further charge, Ex. P-2 dated 16.7.1093 (29.3.1918). The mortgagee was admittedly in possession, and, under the terms of the deed, nothing was payable, to the mortgagor by way of residual rent or profits. In a partition of the tarwad in 1103 (1927-28), the property was allotted to Parameswaran Pillai and his brother Gopala Pillai while their mother, Lekshmi Amma, who was then alive was given a separate share. The partition deed is not in evidence but the contention that Parameswaran Pillai and Gopala Pillai took the properties jointly as a thavazhi and not in equal shares as tenants-in-common was abandoned in the lower appellate court, and, although it has been repeated in the memorandum of Second Appeal, it has not been urged at the hearing. Gopala Pillai died in 1107 (1931-32) leaving his mother Lekshmi Amma as his heir. But Parameswaran Pillai seems to have been under the belief that Gopala Pillai's half share devolved on him by survivorship. At any rate, he sold the property on 24.2.1117 (10.10.1941) to the defendant as if it belonged solely to him. The defendant, in due course, redeemed the possessory mortgage and got into possession-but when exactly this happened does not appear either from the pleadings or the evidence, although, it is now said by counsel for the defendant that it was on 30.2.1117 (16.10.1941). In 1959, 17 years after the sale by Parameswaran Pillai to the defendant the plaintiffs who claimed Gopala Pillai's half share in the property under the gift Ex. P-5 dated 23.11.1958, in their favour by Lekshmi Amma, brought the present suit for partition and redemption and consequent possession of that half share from the hands of the defendant. They were met with pleas of estoppel, and of limitation and adverse possession. (There were other pleas but they are no longer pressed). Both pleas were rejected by the courts below which consequently decreed the plaintiffs' suit. Hence this Second Appeal by the defendant.

(2.) The plea of estoppel was thus taken in Para.5 of the written statement:

(3.) The evidence of the defendant and of dw.3 was to the effect that Lekshmi Amma actively participated in the negotiations that led to the purchase of the suit property by the defendant from Parameswaran Pillai and that she told the defendant that she had no right whatsoever to the property and that it belonged solely to Parameswarn Pillai. But this, as we have seen, is not what was pleaded as constituting an estoppel. The facts there pleaded were entirely different and made out only an admission by Lekshmi Amma (probably in Ex. D-1 but no particulars of this alleged admission were given) and her subsequent conduct in not setting up title in herself as constituting estoppel. I have little hesitation in rejecting this evidence as false and as something that cannot be looked into having regard to the pleading.